This judgment will dispose of the instant civil revision as well as civil revision nos. 473, 474, 475, and 476 of 2018 as common questions for determination arise therein.
2. Facts from which these petitions arose are that the petitioner Muhammad Azam Khan filed five suits of preemption to preempt the sale transactions on the ground of having superior right of preemption, claiming that on 20.3.2015 at 3.00 p.m. (Friday), Muhammad Jamil son of Abdul Shakoor , informed him about the sales in question whereupon, in the presence of Muhammad Iqbal Shahid son of Malik Wahid Bakhsh, Muhammad Nasir son of Abdur Rasheed, Muhammad Ismail son of Abdul Shakoor , he allegedly pronounced his intention to file the suit for preemption and that thereafter , he purpor tedly issued notice of Talb-e-Ishhad which was followed by the institution of the suits for preemption.
3. The suits were resisted with the assertion that the petitioner was fully aware of the transaction of sale well in time and that his plea of receiving information of sale on 20.3.2015 as alleged was factually untrue and also that the petitioner having failed to make the requisite Talbs in accordance with the mandate of law and otherwise having no superior right of preemption, his suit was liable to be dismissed. After receiving evidence, hearing both sides, the learned Civil Judge dismissed the suit, returning findings on issue No.2 to the effect that the petitioner has failed to fulfill the requisite Talbs as required under the Punjab Preemption Act, 1991. As regards issue No.1, relating the plea of superior rights, the finding was that the status of the petitioner as also the purchaser was on equal footing and that the petitioner did not have any superior right.
4. Petitioner assailed the judgment of the learned trial court in appeal which was dismissed by the learned Addl.
District Judge Bahawalpur vide judgment dated 23.2.2018, re-affirming the findings of the learned trial court to the extent of Talbs, and concluded that petitioner was unable to prove the requisite Talbs; and that they are not entitled to a decree of preemption.
5. Learned counsel submitted that the evidence recorded in one case was reproduced verbatim in the other cases and in doing so the learned trial court had committed illegality , therefore, the judgment be set aside and the case remanded for re-recording of the evidence and decision afresh. Further submitted that the learned trial court mis - used the powers as vested in the court under C.P.C. and that the recording of evidence in one case and carrying the same in other cases was a material irregularity .
6. On due consideration of the submissions made by learned counsel, in the light of the copies of the record annexed with these petitions, it is observed that the petitioner filed five suits for preemption to preempt the sales made by the vendors on the plea of having superior right of preemption. The case set up by the petitioner in the plaints of all the cases was that on 20.3.2015 at 3.00 p.m. Muhammad Jamil son of Abdul Shakoor allegedly informed the petitioner about the sales and at that time Muhammad Iqbal, Muhammad Nasir and Muhammad Ismail were present and also that in their presence, the petitioner allegedly pronounced his preemptory right and intention to file the suit. This significant to note that the petitioner also alleged in para 3 of the plaint in the suit "Muhammad Azam Khan v. Asfaah Ahmad" that same Muhammad Jamil allegedly informed him of the other sales, also at the same time i.e. 3.00 p.m.; and also on the same date i.e. 20.3.2015 and also in the presence of same persons as mentioned herein above. In this view of the matter the petitioner produced these persons as witnesses It is therefore manifest that the petitioner did not claim that he was informed of the alleged sales in the other cases by a different person at a different time or on a different date. The evidence when recorded on behalf of the petitioner and thereafter the evidence of respondents was recorded, at no point of time the petitioner appears to have objected to the procedure adopted by the court as alleged now by the petitioner. Petitioner does not claim that any objection was raised before trial court till the conclusion of trial or at the time of final arguments. It is also observed that even in the ground of first appeal before the learned Addl. District Judge the petitioner did not raise any plea qua the recording of the evidence in one case and reprodu cing the verbatim copy thereof in the other cases. Even the judgment of the appellate court does not indicate if any argument on the procedure of recording evidence was ever raised or the petitioner ever claimed any prejudice on this account. In "Ch. SAIFULLAH. vs. ALI SALEEM and another " (2015 MLD 247) while dealing with the plea of recording evidence in one case and reproducing in another case it was observed by this Court as follows: - "11. The said view has further been affirmed by this court in another case reported as Muhammad Ramzan v.
Muhammad Jahangir and another (2012 CLC 844), wherein, it was held that 'unnecessary technicalities should not be allowed to deter the due process of law on trifling grounds, particularly where no prejudice is likely to be caused to any litigant, meaning thereby, the procedural environment must be made conducive to facilitate the flow of the stream of justice.' The identical controversy was also clinched in many other cases by this court as well as the august Supreme Court of Pakistan. Reference can be made on the cases reported as Muhammad Sharif v.
Muhammad Yousaf (2008 MLD 307) and Khushi Muhammad v. Muhammad Yousaf (2008 YLR 362). After placing reliance upon the case reported as Salehon Muhammad and another v. Allah Yar (1989 SCMR 540) this court is of the firm view that the plea raised by the appellant/plaintiff that evidence recorded in one case copied in verbatim over the other file in the peculiar facts and circumstances of the instant case cannot be declared fatal and the appellant/plaintiff could have objected the mode of recording of evidence before the learned trial court, if he was prejudiced in any manner, but he having failed to do so, at this stage before the third forum such an objection cannot be considered. Even today, the learned counsel for the appellant has not been able to point out that how the appellant was prejudiced by the alleged mode adopted by the learned trial court in recording the evidence of the parties and that how the evidence of one case has damaged the stance of the appellant in the other case and how the same were different from each other . It is not the case of the appellant that there were different sets of witnesses in both the cases and separate witnesses were to be examined, whose mind set would vary from each other . There could be substance in the argument of learned counsel for the appellant that the evidence of a witness recorded in one case was copied in verbatim in the other case of a different witness on the similar issue. Even otherwise, the appellant has been non-su ited on his own omissions and commissions made during the proceedings of the cases, but he is not aggrieved of any procedural defect on the part of the learned trial court in losing the cases on merits. Hence, after the elapse of about 12 years, I do not find any good ground to throw the parties in another round of litigation in a suit for pre- emption, which is a feeble right."
Similar view was taken in "MUHAMMAD SHARIF v. MUHAMMAD YOUSAF " (2008 MLD 307) where it was observed as funder: - "8...I also find that evidence of the parties was recorded in suit titled as "Khushi Muhammad v. Muhammad Yousaf" and was reproduced in the other two cases. The petitioner did not object to the course adopted by the trial Court which exercise appears to have been undertaken with the concurrence of the parties and their counsel. The petitioner could not point out any prejudice caused to his right by the complained activity and this defect, if any, being of procedural nature, does not affect the findings of the Courts or trial of the suit. The petitioner having acquiesced to the procedure adopted is now estopped to turn back and say that evidence in all three suits should have been recorded separately. I find that the objection of the petitioner is only of technical nature and does not defeat the ends of justice."
In "KHUSHI MUHAMMAD v. MUHAMMAD YOUSAF " (2008 YLR 362) also the proposition supra was reiterated. In "MUHAMMAD ASLAM and another v. IMAM BAKHSH and two others " (1980 SCMR 879), the August Supreme Court was pleased to observe as below:- "5...Facing this difficulty learned counsel for the petitioners firstly argued that the three suits in this case were not tried in accordance with any correct legal procedure. He submitted that evidence was recorded only in one suit, and copies of the statements of the witnesses were then placed in the other two suits after initials of the learned civil Judge. He submitted that each suit should have been separately tried; the evidence in each suit should have been independently recorded; the witnesses in each case should have been separ ately examined three times, and the consolidation of evidence in one file in the manner above explained was all illegal. The contention raised has no merit. The trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before the learned civil Judge. This implies that the proced ure aforesaid was adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additi onal District Judge and in these circumstances the High Court refused to attach any importance to the same. We agree with the High Court that on the facts in the peculiar circumstances of this case, it was too late to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording evidence and maintaining the record was not objected to at any stage. The defendants cross- examined the witnesses of the plaintif fs; they produced their own witness es in rebuttal and also led documentary evidence in support of their case and at no stage expressed any grievance of the technical kind, which is now being pressed before us. The contention raised in the circumstances cannot be accepted. "
In the present cases, it is discernable from the record of the trial court and also the appellate court annexed with these petitions, that the evidence of the petitioner was recorded; the evidence of respondent was recorded which was cross-examined by the petitioner; the trial continued for considerable time, but petitioner did not raise any objection to the procedure adopted by the court in the matter of recording of evidence so much so that in the grounds of first appeal before the learned District Court, no such plea was raised nor it appears from the impugned judgment that it was ever urged before the first appellate court. Being so, following the rule laid in the above cases, it is concluded that the petitioner at this stage has acquiesced to the procedure and is estopped from raising any objection to the procedure adopted by the court below . Even otherwise, the contents of the pleadings in all the cases manifestly show that the petitioner did not claim a different source of information, different timing or dates for receiving information of sale or making alleged Talbs. In fact, the position taken by the petitioner was that at one time, on the same date, by the same alleged informer , the information of different sales was communicated and that the alleged Talbs were made in the presence of same set of witnesses at one time. This being so, the petitioner cannot claim to have been prejudiced at this stage by the mode of recording of evidence as adopted by the learned trial court. The objection is lacking substance which is accordingly rejected.
7. Both the courts below on in-depth scrutiny of the evidence on record have recorded the findings of fact that the petitioner did not prove having made the requisite Talbs. It was noted that the plea of alleged information on 20.3.2015 was unworthy of any credence inasmuch as the petitioner as PW1 in his cross-examination did not deny having moved an application for obtaining the copy of the sale deed on 14.3.2015 and stated that perhaps he had moved the application which might have been misplaced. It was also observed that there were material contradictions in the testimony of the witnesses. On analysis of the evidence, the findings recorded are to the effect that the requisite Talbs i.e. Talb-e-Muwathibat and Talb-e-Ishhhad were not established in result the suit as also the appeals were dismissed. In the course of arguments, the learned counsel could not point out any misreading or non-reading of the evidence by the courts below nor having gone through the evidence, any misreading or non-reading was observed by this Court. The learned courts below have rightly concluded that the petitioner could not prove the requisite Talbs in result the right to claim preemption stood extinguished. The impugned judgments do not suffer from any error of law nor call for any interference.
8. For the reasons herein above there is no substance or merit in these revision petitions which are accordingly dismissed .